United States District Court, E.D. New York
September 23, 2014
DIANNE SHEFFIELD, Plaintiff,
ROSLYN UNION FREE SCHOOL DISTRICT, and THE ROSLYN UNION FREE SCHOOL DISTRICT BOARD OF EDUCATION, Defendants.
SANDRA J. FEUERSTEIN, District Judge.
Plaintiff Dianne Sheffield ("plaintiff') brings this action against defendants the Roslyn Union Free School District (the "District") and the Roslyn Union Free School District Board of Education (the "Board") (collectively, "defendants"), alleging violations of her constitutional right to due process pursuant to 42 U.S.C. § 1983 ("Section 1983") and various state law claims. [Docket Entry No. 11 (Declaration of Gerald S. Smith, Esq. ("Smith Decl."), Ex. A (the "Complaint"))]. Defendants moved to dismiss plaintiffs complaint. [Docket Entry No. 10]. Plaintiff cross-moved for leave to amend. [Docket Entry No. 41]. Now before the Court is the Report and Recommendation of Magistrate Judge A. Kathleen Tomlinson dated August 11, 2014 (the "Report") that defendants' motion to dismiss be granted and that plaintiff's motion to amend be denied. [Docket Entry No. 23]. On September 2, 2014, plaintiff filed objections to the Report ("Obj."). [Docket Entry No. 26]. On September 16, 2014, defendants filed a response to plaintiffs objections ("Rep. to Pls.' Obj."). [Docket Entry No. 27]. The Court has fully considered the parties' submissions. For the reasons that follow, the Court adopts the Report in its entirety.
I. Standard of Review
Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct proceedings of dispositive pretrial matters without the consent of the parties. Fed.R.Civ.P. 72(b). Any portion of a report and recommendation on dispositive matters to which a timely objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). However, "when a party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the report strictly for clear error." Frankel v. City of NY, Nos. 06-cv-5450, 07-cv-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009). The Court is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are made. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a magistrate judge on a dispositive matter to which no timely objection has been made, the district judge need only be satisfied that there is no clear error on the face of the record. See Fed.R.Civ.P. 72(b); Johnson v. Goard, 487 F.Supp.2d 377, 379 (S.D.N.Y. 2007), aff'd, 305 F.Appx. 815 (2d Cir. Jan. 9, 2009); Baptichon v. Nev. State Bank, 304 F.Supp.2d 451, 453 (E.D.N.Y. 2004), aff'd, 125 F.Appx. 374 (2d Cir. Apr. 13, 2005). Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
Plaintiff objects to: (I) the standard applied by Magistrate Judge Tomlinson in reviewing defendants' motion to dismiss; (2) Magistrate Judge Tomlinson's ruling that plaintiff has not stated viable claims for libel, libel per se and defamation; and (3) Magistrate Judge Tomlinson's ruling that plaintiff has not stated a viable claim for a stigma-plus due process violation under Section 1983. See generally Obj. Accordingly, the Court is required to conduct a de novo review of those portions of the Report. Upon de novo review of the Report and consideration of the plaintiffs objections and the defendants' responses thereto, the Court overrules the objections and accepts the Report in its entirety.
A. Standard of Review Applied by Magistrate Judge Tomlinson
Plaintiff contends that "the Report and Recommendation improperly resolved issues of fact in favor of Defendants and failed to accept all well-pleaded allegations in the complaint as true [and] drawing all reasonable inferences in the plaintiffs favor." Obj., at I (internal citations omitted). Plaintiff's one specific example is that the Report, in concluding that the alleged defamatory remarks were protected by absolute immunity, "fails to give credence to Plaintiff's allegations regarding the malicious nature of such remarks, but rather, assumes they were issued as part of the Board discharge of their quasi-judicial duties, within the scope of their authority." Obj., at 4.
Upon a de novo review, this Court is satisfied that Magistrate Judge Tomlinson adhered to the correct standard in reviewing the parties' submissions and issuing the Report. Contrary to plaintiffs contention, Magistrate Judge Tomlinson did not accept as true defendant's justification for the allegedly defamatory statement. Rather, Magistrate Judge Tomlinson looked to the four corners of the allegedly defamatory statement made by the Board on September 20, 2012 [Docket Entry No. 11 (Smith Decl., Ex. C. (the "Board Statement"))] and decided, as a matter of law, that the remarks were protected by absolute immunity. See Aequitron Med., Inc. v. Dyro, 999 F.Supp. 294, 297 (E.D.N.Y. 1998) ("Whether the absolute privilege attaches to alleged defamatory statements is a question of law for the court."). The Court finds plaintiffs objection to the Magistrate Judge's application of the proper standard for determining a motion to dismiss to be without merit.
B. Absolute Immunity for Libel, Libel Per Se, and Defamation Claims
Plaintiff objects to the Report's dismissal of the libel, libel per se and defamation claims and to the Report "mistakenly giving credence to Defendants' factual assertions and concluding that the defamatory remarks were protected by absolute immunity and therefore, not actionable." Obj., at 3. For the reasons explained herein, the Court holds that that plaintiffs libel, libel per se and defamation claims should be dismissed because defendants are entitled to absolute immunity.
New York law considers a statement by an executive official to be absolutely privileged when it is made in the exercise of his executive function and has some relation to the executive proceeding in which the official is acting. Sheridan v. Crisona, 14 N.Y.2d 108, 249 N.Y.S.2d 161, 198 N.E.2d 359 (1964). There is a two prong test to determine the applicability of absolute immunity to an alleged defamatory statement: the first prong focuses on the personal position or status of the speaker. See Doran v. Cahalan, 125 A.D.2d 289, 291, 509 N.Y.S.2d 51 (N.Y. Sup.Ct. N.Y. Cnty. 1986). The second prong "requires an examination of the subject matter of the statement and the forum in which it is made in the light of the speaker's public duties." Id. Only statements made in the course of the speaker's discharge of his official responsibility will be protected; an executive official "may still be sued if the subject of the communication is unrelated to any matters within his competence or if the form of the communication- e.g., a public statement- is totally unwarranted." Lombardo v. Stoke, 18 N.Y.2d 394, 401, 276 N.Y.S.2d 97, 222 N.E.2d 721 (1966).
Plaintiffs objection focuses upon the second prong of this test, alleging that the Report "assumes [the statements] were "issued as part of the Board discharge of their quasi-judicial duties, within the scope of their authority" (Obj., at 4) and "fails to give credence to Plaintiffs allegations regarding the malicious nature of such remarks." Id.
Examining the text of the Board Statement, as well as the allegations in the complaint, the Court finds the Report's conclusion that defendants were acting with the scope of their official capacity when they published the Board Statement to be correct. The subject matter of the Board Statement - a public explanation of the termination of the District's Claims Auditor in an attempt to "be fully transparent" (Board Statement, at 1), "restore the trust that was badly damaged through financial scandal" ( id. ) and reassure the community that there were no "financial irregularities with regard to the School District finances" ( id. ) - is within the competence and purview of the Board of Education and the District and is not totally unwarranted given the District's recent history of "improprieties and criminal acts." Id. The forum in which the Board Statement was made- on the District's own website (Complaint ¶ 77; see also Board Statement at 1)- further supports the conclusion that defendants were acting within the scope of their official capacity when they published the Board Statement. As noted supra in Section II.A., Magistrate Judge Tomlinson, in determining whether it was within the scope of defendants' authority to issue the Board Statement, did not "reject[s] Plaintiff's allegations that the remarks issued by the Board were done so maliciously" (Obj., at 4) or "simply adopt[s] the justification asserted by the Defendants" ( id. ) but rather looked to the text of the Board Statement itself to determine that defendants were protected by absolute immunity.
Plaintiff's objection that the Report "misapplies binding precedent as set by Supan v. Michelfeld, 97 A.D.2d 755, 468 N.Y.S.2d 384 (2d Dep't 1983)" (Obj., at 3) is unavailing. In Supan, the court did not, as plaintiff states, expressly hold that "the publication of charges levied against [plaintiff] were clearly outside the scope of [defendants'] respective duties and thus not protected by absolute immunity." (Obj., at 5) (emphasis in original). Rather, the Supan court found that the publication "could have been outside the scope of the defendants' duties and thus they might not have an absolute privilege with respect thereto" and therefore permitted discovery "to ascertain whether the alleged defamatory remarks were repeated to specific outside organizations and officials, the relationship of those organizations and officials to the defendants, and the circumstances under which such remarks, if any, were made." Supan v. Michelfeld, 97 A.D.2d 755, 757 468 N.Y.S.2d 384 (2nd Dep't 1983) (emphasis added).
Unlike Supan, there is no uncertainty in this case as to whom the Board Statement was made and the circumstances under which it was made; that information is clear from the text of the Board Statement itself. Public statements by boards of education made in similar circumstances as those present here have been found to be protected by absolute immunity. See Lombardo v. Stoke, 18 N.Y.2d 394, 401-02, 222 N.E.2d 721 (1966) (finding that defendant Board of Higher Education acted within the scope of its official powers and thus should be accorded absolute privilege where, "[c]onsidering the widespread newspaper coverage given to the charges of bias, the propriety, indeed the necessity, of a public statement by the board [could] hardly be doubted.").
The Court finds that defendants were acting within the scope of their official duties when they made the Board Statement. The Court hereby overrules plaintiff's objections and grants defendants' motion to dismiss Counts Two, Three and Six on the grounds of absolute immunity.
C. Stigma-Plus Due Process Violation Under Section 1983
Plaintiff objects to the Report's finding that she has not stated a viable claim for a stigma-plus due process violation under Section 1983. To succeed on a stigma-plus claim, a plaintiff must demonstrate that her liberty was deprived without due process of law. See Segal v. City of New York, 459 F.3d 207, 213 (2d Cir. 2006). In the case of"an at-will government employee, the availability of an adequate, reasonably prompt, post-termination name-clearing hearing is sufficient to defeat a stigma-plus claim." Id at 214. "Courts have consistently held than Article 78 proceedings provide sufficient procedural protection as post-deprivation name-clearing." Spang v. Katonah-Lewisboro Union Free Sch. Dist., 626 F.Supp.2d 389, 397 (S.D.N.Y. 2009). Plaintiffs are "not deprived of due process as a matter of law" where an Article 78 proceeding is available to afford "a meaningful opportunity to challenge the severance of their employment and to clear their names." Carter v. Inc. Vill. of Ocean Beach, 693 F.Supp.2d 203, 216 (E.D.N.Y. 2010).
Plaintiff alleges that because of her own misinterpretation of the language in her employment contract,  she "reasonably believed that there were no post-deprivation remedies available to her." Obj., at 7. In analyzing whether sufficient due process exists to defeat a stigma-plus claim, "the key question is whether the governmental actor afforded the plaintiff the opportunity to clear his name through a hearing." Giscornbe v. New York City Dep't of Education, 12-cv-464, 2013 WL 829127, at *8 (S.D.N.Y. Feb. 28, 2013). It is the availability of an adequate post-deprivation remedy that is key, not whether the plaintiff, for whatever reason, chose to avail, or not avail himself of that opportunity. See Piccoli v. Yonkers Bd. of Educ., 08cv-8344, 2009 WL 4794130, at *5 (S.D.N.Y. Dec. 11, 2009) ("The availability of due process in the form of an Article 78 proceeding means that there was simply no denial of due process to be pursued in this Court under Section 1983."); Walsh v. Suffolk Cnty. Police Dep't, 06-cv-2237, 2008 WL 1991118, at *14 (E.D.N.Y. May 5, 2008) ("The Article 78 proceeding was available to plaintiff... that availability means there is no constitutional violation").
Plaintiff offers no authority, and this Court has found none, to support her argument that her failure to avail herself of the available Article 78 proceeding based on her subjective belief that such a proceeding was unavailable to her alters the above analysis. In fact, where an Article 78 proceeding is available, plaintiff is "not deprived of due process simply because he failed to avail himself of the opportunity." Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir. 1984). Courts dismiss stigma-plus claims where a plaintiff"could have availed [herself] of adequate post-deprivation remedies but failed to do so." Felton v. Katonah Lewisboro Sch. Dist., 08-cv-9340, 2009 WL 2223853, at *7 (S.D.N.Y. July 27, 2009) (granting motion to dismiss stigma-plus claim).
In her objection, plaintiff raises, for the first time, the argument that even if an Article 78 proceeding was available, "such a hearing would have been futile." Obj., at 8. Other than citing to case law for the general proposition that in some circumstances, a stigma plus claim may be maintained if a post-deprivation hearing would be futile, plaintiff does not explain, or even plead allegations that would allow the Court to infer why an Article 78 proceeding would have been insufficient to allow plaintiff to refute the charges against her and clear her narne. Plaintiff's argument that an Article 78 hearing would have been futile is no more than a legal conclusion, unsupported by any factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). In the absence of any allegation as to why an Article 78 proceeding would have been futile in this case, the Court overrules plaintiff's conclusory objection. Because adequate process in the form of an Article 78 proceeding was available to plaintiff, her stigma-plus claim must be dismissed.
For the foregoing reasons, plaintiff's objections are overruled and this Court adopts the Report in its entirety. Accordingly, defendants' motion to dismiss is granted and plaintiff's motion to amend is denied. The Clerk of the Court shall enter judgment accordingly and close this case.